A Supreme Court mystery worthy of Grisham


Last week, I steered my Facebook friends, many of whom are lawyers and journalists, to an article by Harvard Law professor Jack Goldsmith in the New Republic. Titled “Temple of Silence,” it contrasted the Supreme Court with the rest of the government when it came to keeping a secret.

“In recent weeks,” Goldsmith wrote, “the press has reported on U.S. cyber-attacks on Iranian nuclear enrichment facilities, a double agent inside the Al Qaeda affiliate in Yemen, and internal deliberations about drone operations. And by all accounts, the primary sources for these revelations were executive branch officials. ‘The accelerating pace of such disclosures, the sensitivity of the matters in question, and the harm caused to our national security interests is alarming and unacceptable,’ charged congressional intelligence committee leaders in rare bipartisan unison. Why is the court so much better at stopping leaks than the government agencies entrusted with the country’s most critical secrets?”

Goldsmith spoke too soon. Over the weekend, Jan Crawford of CBS, a longtime and well-wired Supreme Court reporter, revealed that “Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s healthcare reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law.”


Not only that. “Justice Anthony Kennedy -- believed by many conservatives to be the justice most likely to defect and vote for the law -- led the effort to try to bring Roberts back to the fold. ‘He was relentless,’ one source said of Kennedy’s efforts. ‘He was very engaged in this.’ ”

But wait, there’s more. Kennedy and Justices Antonin Scalia, Samuel A. Alito Jr. and Clarence Thomas may have been so irked with the chief that they refused to sign even the part of his opinion with which they agreed -- his conclusion that Congress lacked power under the Constitution’s commerce clause to require Americans to purchase health insurance. (Roberts, joined by four liberal justices, upheld the so-called individual mandate under Congress’ taxing power.) Wrote Crawford: “The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.”

And who are Crawford’s sources? Two unidentified parties “with specific knowledge of the deliberations.” That means either justices (presumably conservative ones) or their bound-to-secrecy law clerks. Et tu Scalia?

Crawford’s story may explain why conservative commentators in May started warning Roberts in print not to go wobbly under pressure from liberals. I still doubt that Roberts caved to left-wing opinion -- or that his decision was the result of an epileptic seizure, as Michael Savage, the conservative radio host, suggested. But maybe someone in the Temple of Silence thought an earlier leak to some friendly pundits was a way to forestall such “treachery.”

John Grisham, call your office.


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